Special children are still out in the cold

One in two pupils with different needs lose their case for support at tribunal. Why is the system failing them? Fran Abrams reports
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A year ago, ministers welcomed the dawn of a more harmonious age in relations between parents and education authorities. Years of wrangling over resources for pupils with special educational needs were set to be ended by the introduction of a code of practice that would ensure that their problems were dealt with swiftly and sympathetically.

In the few cases in which parents were still unhappy they would be able to appeal to a new tribunal. This, in its turn, would stop the flow of such cases into the courts.

So what has happened since? A year on, the tribunal is struggling to cope with a far heavier workload than officials ever expected. The Department for Education predicted that it would deal with 700 cases in its first year. The actual number is much higher. So far, 1,047 have been lodged, of which 257 have been heard. Just over a fifth, 222 in total, have been withdrawn and 568 are pending. The average lead-in time before a hearing stands at five months. The courts still have their fair share of business and there is no shortage of work for solicitors specialising in special- needs cases.

In May, the National Association of Head Teachers published a survey suggesting that two-thirds of headteachers cannot provide the resources needed by pupils with special needs who do not have formal "statements" setting out their problems and how they must be addressed.

More worrying, a third of the 300 respondents said they could not meet the needs of pupils with statements of special needs. As these documents are legally binding, the figures present a grim picture. Most of the heads said their budgets would need to be increased by 2-5 per cent for them to be able to meet these pupils' needs properly.

John Wright of the Independent Panel for Special Education Advice (Ipsea), which helps about 1,000 families each year in disputes with local authorities, says these figures are "disastrous". Local authorities are supposed to provide resources, he says.

"The whole purpose of a statement and the legislation behind it is that the provision for those needs is guaranteed. Why is it that these heads are not telling parents to go and get these situations sorted out? A solicitor's letter would have the provision reinstated within five working days: it's the simplest problem we ever have to deal with."

Mr Wright says the jury is still out on the effectiveness of the new code of practice, under which the statementing process should be completed within six months. The code also sets out five stages leading up to the implementation of the formal statement.

Ipsea receives many minor complaints which suggest that parts of the code are being ignored. For example, parents are supposed to know what provision is being made for their children by the beginning of the term before they transfer to secondary school. But Ipsea gets calls from people who are still waiting in mid-August.

The news is not all bad. Parents have found the staff of the special needs tribunal helpful and made positive comments about the run-up to the formal hearing. They accept that the tribunal is not biased in favour of themselves or the local authority.

There are, however, complaints about the process. There is no legal aid and parents feel they are not encouraged to bring a solicitor to the hearing. Of the 30 cases Ipsea has brought only half have succeeded.

Mr Wright says that because the chairmen of the panels are not special needs experts they do not always grasp the finer points of a case. One case, in which the local authority won even though it could not say how much provision the child would receive at the school of its choice, is already heading for an appeal in the High Court.

But Trevor Aldridge, the national chairman of the tribunal, believes they are learning fast. He points out that the chairs of industrial tribunals have never been experts in the field in which they adjudicate. He agrees that the success rate nationally is about 50 per cent but says this is not fixed.

"On the cases I have actually seen, it sounded as if the right result had been arrived at. One has to be realistic. We all know the amount of money for special educational needs is strictly limited. The result of that is that in some relatively borderline cases one has to take a strict line and say not everybody gets what they want."

Kate Haston v Brent: the battle for full-time care

Kate Haston has athetoid cerebral palsy and cannot speak or walk. Her local authority, Brent, is proposing to withdraw the helper who takes her to the toilet, changes her for swimming and accompanies her wherever she goes at school. Instead of having her own full-time welfare support, she would have to share two helpers with eight other children.

Kate's mother was on the brink of High Court action in April to stop the move when agreement was reached, but the authority has still not given up.

This is not her first battle. Kate was educated at home until she was 10 but when her mother was advised that she needed the company of other children it took two years before a special school place and a full-time welfare assistant were provided for her. Kate's mother complained to the ombudsman about the delay and won pounds 3,000 in compensation.

After that Mrs Haston might have felt justified in relaxing, but when she was told in April this year that her daughter's full-time welfare helper was to be withdrawn, she went straight to her solicitor. By the following afternoon he had secured emergency legal aid for her and 24 hours after that she was seeking an injunction to prevent Brent from taking the action.

But despite this and despite reassurances from the school that Kate would have support next term, the authority has now issued a revised statement for her which withdraws it. Mrs Haston has started tribunal proceedings and the authority has agreed to continue as normal at least until a meeting can be held in September.

"Kate can't speak, so you have to actually read her body language," says Mrs Haston. "If she starts shuffling her bottom, it means she wants the toilet. If she wants a drink, she puts her hand in her mouth. You can't read those signs unless you really know a child and the two welfare assistants who have to look after nine children cannot do that."

Unless you are articulate, you can never win

Jonathan Goldenberg was born with just one advantage - his parents. At nine months old, he was diagnosed as having tuberous sclerosis, which leaves calcium deposits in the brain and causes multiple disabilities.

His father, Philip, believes Jonathan would have been less well provided for if he had not had articulate, middle-class parents.

"If you are a handicapped child, it is terribly helpful if your father is a solicitor and a local councillor and if your mother is a pharmacist and a member of the community health council," he says.

The Goldenbergs were determined that Jonathan would have a secure place to live after they were no longer able to look after him, and decided that the most suitable home for him was a Jewish residential village for the disabled at Crowthorne in Berkshire. He should be educated there so that he could happily remain once he was past the school leaving age.

Their local social services department supported the decision and the health authority agreed that it should shoulder some of the cost. But when their education authority issued a draft statement of special needs, it said Jonathan should continue to be educated at his day school in Surrey.

The Goldenbergs objected to the statement on the grounds that it ignored their religious needs and also that it was not specific about the amount of speech therapy that their son needed. They consulted Jack Rabinowicz, a leading solicitor who deals with special needs cases, and applied for a tribunal hearing.

A former social services chairman wrote a letter on their behalf. Two weeks later, Philip's phone rang at work: it was the local authority's head of special needs, agreeing to place Jonathan at Ravenswood this autumn.

"I have rarely been speechless, but I was lost for words for about 30 seconds," says Philip. "Unless you are persistent, articulate and pretty bloody-minded, you will never get through."